Presented by Sri P.K. Dash, Member .
The present complaint pertains to deficiency of service as provided under the provision of Consumer Protection Act-1986. Its brief history is as follows:-
The Complainant being a potential consumer bearing consumer No.415001035221 has taken an electric connection to run his deep bore well, for agricultural purpose to irrigate his 10(ten) acres of land situated in Mouza Jitapali vide Khata No. 113/8, 113/20 and 113/30 upon which he has sown “1010” kisam paddy. On Dt.05/03/2013, electricity supply to the L.I.Point stopped as the transformer became defective being burnt and the semi cultivated land was affected. The Complainant with other villagers intimated the fact to the officials of the Opposite Party who did not take any action over the matter and the Complainant sustained a loss which in terms of the total usufruct of the land accumulate in to an amount of Rs.2,50,000/-(Rupees two lakh fifty thousand)only towards compensation for the loss met to him besides metal agony and pain. The Complainant claims from Opposite Parties Rs. 15,000/-(Rupees fifteen thousand)only towards mental pain and agony and Rs.5,000/-(Rupees five thousand)only towards litigation expenses.
The Complainant to substantiate his case has filed the following xerox copies of documents and adduce evidence through affidavit.
Copy of voter Identity Card of Tikaram Patel.
Copy of R.O.R. bearing Khata No. 113/08 stands in the name of Tikaram Patel.
Copy of R.O.R. bearing Khata No. 113/28 stand in the name of Prasanath Patel, S/o Tiraram Patel.
Copy of R.O.R. bearing Khata No. 113/30 stands in the name of Babulal Patel, S/o Tikaram Patel.
Copy of rent receipt towards the Khata No. 113/30, 113/28, 113/8 for the year 2009-10.
Copy of Money receipt by WESCO.
Copy of Application of Complainant and endorsement of the Sarpahch Jhar Gram Panchayat.
Copy of Electricity bill by WESCO stands in the name of Complainant Tikaram Patel.
Copy of R.O.R. bearing No.113/10 stand in the name of Dibakar Patel.
Copy of R.O.R. bearing No.113/75 stand in the name of Tikaram Patel.
Copy of R.O.R. bearing No.113/11 stand in the name of Bhubaneswar Patel.
On being noticed, the Opposite Parties appeared through Advocate and filed their joint version denying almost all the allegations made by the Complainant.
The Opposite Parties in their version, admitted the fact to the extent that the Complainant is a bone fide consumer but denied that he has taken an electricity connection to run his deep bore well in order to facilitate the cultivation. The Opposite Parties further submitted that, the said transformer was brunt on Dt.08/03/2010 not due to negligence act of the Opposite parties but by the Act of God. As suitable transformer to carry on the load factor of 38.5 K.W. consumption for village Jitapali was not available in stock. The J.E. (Electrical) Ghenss reported the matter to his superior authority and at last a repaired transformer was obtained from Burla stock of WESCO, which was installed on Dt.30/03/2010 at village Jitapali. Hence there is no deficiency in service on the part of the Opposite Parties as alleged by the Complainant and prays for dismissal of the complaint.
In support of his case the Opposite Parties filed the following documents and affidavit (xerox copies).
Copy of break down report of S.D.O., Electrical subdivision, WESCO, Sohella, along with single line diagram.
Copy of letter bearing No. 172 Dt.18/03/2010 towards submission of break down report to the Executive Engineer, BWED, Burla.
Copy of letter Dt.19/03/2010 of Executive Engineer for submission of transformer break down report to the Superintending Engineer, Electrical Circle, Burla, Sambalpur.
Copy of letter Dt.20/03/2010 towards release of repaired transformer for replacement against break down to the Executive Engineer, BWED, Bargarh.
Copy of receiving the material by store keeper.
Copy of store indent/issue voucher.
Copy of list of villagers of Jitapali against whom huge amount of arrear is stand.
Having gone through the complaint petition, Opposite Parties's version there to as well as the copies of documents, and affidavits available in the record the Forum finds as follows:-
On perusal of the record it is found that, the Complainant namely Tikaram Patel had initially filed this case and after his death the application for substitution of deceased. Complainant was moved by his legal representatives. This Forum allowed them to continue in the proceeding which has already been intimated by their late father after perusing the Death Certificate, R.O.R. and Voter card, which are the documents created by the Govt. agencies, and are admissible Under Section 35 of the Indian Evidence Act. There is no bar under the provisions of the Consumer Protection Act to allow application for substitution. The application for substitution of a deceased Complainant can be moved by his legal representative and they can be allowed to continue in the proceeding. When a party to the case dies, the first question is to be decided whether the right to sue survives or not. If it does not there is an end to the case, but if it does, the case will not be abated. It can be continued by the heirs and legal representative of the deceased party. The general rule is that all rights and liabilities what so ever existing in favour of the person at the time of his death, survives to his legal representatives. So the contention of Opposite Parties that on the death of deceased Complainant this case has already been abated and there is no contractual relationship between the present Complainants and Opposite Parties and with the death of the deceased Complainant the contract between him and the Opposite Parties automatically ceases and the pleas of the Opposite Parties that the voter card and the R.O.Rs can not help the substituted Complainants to prove that they are the heirs of the Tikaram Patel can not be accepted.
The Complainant alleges that the said transformer supplying the electricity be came defective since Dt.05/03/2010, there by the irrigation system through L.I. Point of the Complainant has been stopped from Dt.05/03/2010, as a result of which the paddy cultivated in (10)ten acres of land got completely damaged and suffered a great loss.
On proper perusal of the transformer break down report and letter found that the alleged transformer was burnt on Dt.08/03/2010 and the said fact was duly communicated to the Opposite Parties and the Opposite Parties communicated through letters to each other and after that the said transformer after due repaired installed on Dt.30/03/2010 only after lapse of about twenty two days. On perusal of the Electricity bill by WESCO stands in the name of Tikaram Patel clearly reveals that the deceased Complainant has taken under L.I. Point and agricultural category of electricity connection and has paid the electric dues on Dt.22/03/2010 and depending upon the L.I. Point, the Complainant has cultivated paddy which is clearly reveals from the R.O.Rs filed by the Complainant and from the endorsement of the Sarpanch in the letter of Complainant. Within these alleged period, the Opposite Parties have taken no step as immediate measures for restoration of electricity to save the cultivation of the Complainant. The Complainant suffered loss of crop due to failure of restoration of electricity and its amounts to deficiency of service on the part of the Opposite Parties. The copies of Record of Rights Annexed in the case record clearly reveals that, the deceased Complainant was recorded with only Ac. 4.90 dec of land under Khata No.113/8 of mouza Jitapali. The other R.O.Rs do not disclose that the deceased Complainant is the owner of Khata No. 113/28 and Khata No.113/30 of mouza Jitapali. Lands pertaining to Khata No. 113/28 and Khata No. 113/30 of mouza Jitapali are in the name of other tenants who are having no contractual relation with the Opposite Parties. By virtue of contract between the deceased Complainant and Opposite Parties, the electric connection given to the deceased Complainant Tikaram Patel vide Consumer No. 415001035221 for irrigation purpose. The MS R.O.R. Khata No 113/10, No.113/11 and 113/75 neither mentioned in the complaint petition nor in the affidavit filed by the Complainant. So any right over the property in MS R.O.R. Khata No 113/10, No.113/11 and 113/75 is not accepted by the Forum. The deceased Complainant has not adduce any evidence either oral or documentary to prove that he is in possession of 10(ten) acres of land. So the deceased Complainant is entitled for the relief in regard to loss attributed only in AC 4.90 dec of land which is in his exclusive possession.
Regarding the exact loss, the Complainant has not filed any documents from any competent authority evidencing his exact loss of crop for non-functioning of the said transformer. The fertilizer purchase memo, seed purchase memo and money receipt issued by various persons for cultivation activities filed by the Complainant are also not proved by examining those persons who issued the same. The report of Sarpanch also not reveals the exact loss. Therefore the claim relating to exact financial loss of Rs. 2,50,000/-(Rupees two lakh fifty thousand)only is not proved by the Complainant convincingly with more cogent evidences.
However for non supply of electricity for long twenty two days as the lift irrigation became in operative, the standing crop must have some damages as of general prudence.
Besides as per OERC Regulation -2004, non supply of electric current due to transformer failure after the time limit allowed for recourse is a deficiency in service by the Opposite Parties and they are liable for compensation to the eligible consumers.
In view of the above discussion, the Opposite Parties are liable for deficiency in service towards the Complainant.
Considering all the facts and evidence on record, the Forum Order as follows.
O R D E R
The Opposite Parties are directed, jointly and severally to pay a sum of Rs. 20,000/-(Rupees twenty thousand)only towards compensation for loss of crop and Rs. 2,000/-(Rupees two thousand)only towards mentalagony and litigation cost to the Complainant. The awarded amount shall be paid within forty five days of Order, failing which the awarded amount shall carry 9%(nine percent) interest per annum till actual date of realization.
Case is disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree, (Sri Pradeep Kumar Dash) (Smt Anjali Behera) (Miss Rajlaxmi Pattnayak)
M e m b e r. M e m b e r. P r e s i d e n t.
